Everything You Need To Know About the Salary and Criminal History Bans

It’s a new year. And for California employers, that means one — well two — new things to consider: laws AB168 and AB1008.

Effective Jan. 1, the salary history ban outlaws employers from asking job applicants about their salary history. While the criminal history ban (also known as “Ban the Box”) prohibits companies from inquiring about an applicant’s criminal history on employment applications or before making them a conditional job offer.

From a candidate’s perspective, these are a welcome changes in the hiring process. For employers and staffing firms, it’s a new way of doing business. Century Group’s Managing Director of Human Resources and General Counsel, Francesca Brooks, helps break down both laws, and provides best practices moving forward.

THE LAWS

Salary History Ban
The California Labor Code now provides section 432.3, which restricts employers from seeking applicants’ prior salary information. The bill bans recruiters and employers from asking candidates verbally, in writing or through searches or an agent.

On request, candidates should be given a pay scale for the position sought — whether it’s by a specific wage, salary level or compensation formula. “If they voluntarily disclose to you — without any prompting — how much they’re making, you can use that information,” Brooks explains. “Once we or an employer has that amount, we can use it to make a decision of what we’re going to pay.”

Criminal History Ban
AB1008 is a new section added to the Fair Employment and Housing Act, which prohibits discriminatory employment practices. The law renders it illegal for employers to inquire about an applicant’s criminal history on employment applications. It also requires employers to delay background checks on candidates until a conditional employment offer has been made.

When rescinding a conditional offer, employers need to ensure it’s not based “solely or in part” on the candidate’s conviction history. “They have to justify denying the application. It has to be relevant,” Brooks says. “In our case, what would be relevant for people in accounting is embezzlement. If someone has a DUI, it’s not going to be as relevant.”

If the employer chooses to move ahead with the withdrawal, they must notify the applicant in writing.  Five business days should be allotted for the candidate to appeal the decision before filling the position. But Brooks notes that this isn’t necessarily the case for staffing firms that take on consultants as their employees to complete key roles and interim projects.

“If it’s a temporary position, we can go ahead and fill the position while we’re considering whether or not to bring the temp on as our employee,” she says. “We don’t have to wait five days because that’s not specifically the position they’re interviewing for. They’re applying to join our talent pool.”

WHAT IT MEANS

Salary History Ban
When it comes to the goal behind both laws, there’s no question about it: they fall heavily on the employee-side of the spectrum. Demographics, such as women and minorities, who have historically been underpaid for positions can expect their salaries to meet those of their professional counterparts working in the same role. It’s a way to bridge the wage gap, so to speak.

But for employers and staffing firms, the approach to properly placing applicants in suitable positions is less clean-cut. Instead of viewing this is as a challenge, Brooks suggests professionals use this to ensure their candidates are seeking a fair wage and clients are maintaining compliance with the law.

Criminal History Ban
This is another measure created to help counter bias and discrimination within the hiring process. Many employers automatically reject applicants with a conviction history — eliminating qualified candidates without giving them an opportunity to prove their worth. Banning the box on employment applications gives applicants that chance.

“Employers have access to a talent pool they may not have considered before,” Brooks says. “It also helps qualified candidates out there who are self-selecting.”

BEST PRACTICES

Salary History Ban

1. Develop a script. “Have some kind of script where you tell the candidate, ‘I’m not asking you for your salary history or what you’re making right now. I’m only asking what your expectations are,'” Brooks says.
2. If the candidate — without any prompting — voluntarily discloses their salary, establish a process where you document the circumstances of the disclosure.
3. If the candidate discloses their salary information and it benefits them, you should also note you received authorization from the candidate to disclose this information to the employer.

Criminal History Ban

1. Implement training with your human resources department detailing legal interview questions for candidates.
2. Don’t inquire into a candidate’s criminal history, verbally or on the employment application.
3. A conditional job offer cannot be denied solely on the part of the applicant’s conviction history, unless the employer is able to link the offer withdrawal to specific job duties required of the position. Employers must also notify the candidate of their decision in writing, and explain they have five business days to respond and/or submit evidence in their defense.

Are you a candidate or client seeking assistance with your search? Century Group’s team of placement experts is equipped to help find your next hire or career move. Contact us today.